Hearsay Exceptions (1) Flashcards
801 types of hearsay exceptions
(1) declarant-witness prior statements
(2) opposing party statement
A declarant witness’ prior statement is admissible when they are ____ and it conforms with the rest of the rule
subject to cross
801(d)(1)(A) states that a declarant-witness’ prior out of court statement can be hearsay exception when it is __
inconsistent with testimony AND was given under penalty or perjury at trial, hearing or other proceeding or in a deposition
801(d)(1)(B) states that declarant-witness prior statement admissible if it is consistent with testimony and offered to ___
rebut charge that declarant recently fabricated it or acted from recent improper influence or motive in so testfiying OR to rehabilitate credibility when attacked on another ground
801(d)(1)(C) admits declarant-witness prior statement when it ___
identifies person as someone declarant perceived earlier
801(d)(2)(A) admits opposing party statement when ___
made by party in individual or representative capacity (direct admission)
801(d)(2)(B) admits opposing party statement when
one that party manifested it adopted or believed to be true (adoptive admission)
801(d)(2)(C) admits opposing party statement when
made by person party authorized to make a statement on their behalf
801(d)(2)(E) admits opposing party statement when
made by party’s co-conspirator during and in furtherance of the conspiracy
801(d)(2)(D) admits opposing party statement when
made by agent or employee on matter within the scope of that relationship and while it existed
805 is about ___
hearsay within hearsay
805 allows hearsay within hearsay when ___`
each part of the combined statements conforms with an exception to the rule
The declarant’s statement by itself does not establish ___
- declarant authority under C
- existence/scope of relationship under D
- existence or participation in conspiracy
For past inconsistent statements of declarant-witness made under oath at trial/hearing/deposition, the jury can ___
consider the statements for their truth
Opposing party statement hearsay exceptions don’t require ___
first hand knowledge
A party-opponents own statements are admissible under 801 whether ___
inculpatory or exculpatory
Four requirements for adoptive admissions
- heard and understood the statement
- able to respond
- circumstances naturally called for a denial
- D failed to respond or responded but didn’t deny
Real life examples of 801(d)(2)(c)
Trump’s lawyers
Bourjaily holds that a judge must consider whether he can conclude ___
by preponderance if all prereqs of co-conspirators
Bourjaily found there was enough for a conspiracy because ___
statements + something else (second guy showed up)
Three factors for co-conspirator exception to hearsay
- conspiracy exists
- conspiracy between defendant and declarants
- statements were made during AND in furtherance of the conspiracy
Billables show Phillips worked after saying she sustained injuries from airline. Admit?
Yes, party opponent own statement (she signed)
Binns/D had told state trooper said he overheard Betty/P tell others it was her fault. Admit?
- What Betty said to others is admissible under d2A
- what Binns told to state trooper inadmissible UNLESS comes in to show consistency
Signed Currency Seizure Report indicating she was claimant of money when she signed; thought she just had to sign to get money returned to hear.
Arguably didn’t understand so not adoptive admission but Capers would admit
Undercover cop wants more drugs; Monroe says “get more from my buddy” → Beckham moves to get more. Arrests both.
meets four reqs of adoptive admission but stronger if he had said something like “he’s the kingpin” and no denial
In jailhouse meeting bw daughter/father, daughter asks why he wasn’t truthful. He points to camera recording meeting.
Key is whether circumstances don’t call for denial, Defense no because of Miranda rights, Prosecution yes
Wolf attacked 3 yo boy. Poos came home post-bite, immediately left note to Sexton, President of Canid Research Center (where wolf from) that “Sophie the wolf bit a child today.”
Can admit against Poos under d2A and against Center under d2D because speaking under employment
How would you help Poos on retrial if defense attorney?
Ask him if he actually saw wolf bite the child (d2 doesn’t require personal knowledge so get at it with question)
In wolf example, the little boy cannot testify under ___
601, not competent
Wolf attacked 3 yo boy. Poos came home post-bite, immediately left note to Sexton, President of Canid Research Center (where wolf from) that “Sophie the wolf bit a child today.” Corporate minutes also showed discussion about legal implications of bite. Can you BM admit against Center?
Yes because 801(d)(2)(D) in scope of employment so not hearsay BUT can argue should be excluded under 407, subsequent remedial measures
Wolf attacked 3 yo boy. Poos came home post-bite, immediately left note to Sexton, President of Canid Research Center (where wolf from) that “Sophie the wolf bit a child today.” Corporate minutes also showed discussion about legal implications of bite. Can you BM admit against Poos?
No, hearsay because he didn’t say it nor his agent
Officer testimony about Lyman’s conversation with Delbert where both decided to kill brother.
- 805 problem
- Lyman as declarant, during and in furtherance of conspiracy so admissible
- officer statement not admissible under d2A or d2E but fits under other hearsay exception so 805 applies
C person in robber group (ACDEG) says would be nice if had guns for robbery.
Can A testify to C’s statement?
Yes, can against C and anyone else involved
C person in robber group (ACDEG) says would be nice if had guns for robbery.
A to gun owner: “I need a gun for a job I’m doing with some people.”
- can come against A under D2A
- can come against others under d2E because in furtherance of conspiracy (even if they weren’t around) but need some other evidence they were co-conspirators
C tells gf that his group has job to do and promises to buy her diamond.
Not admissible, because not in furtherance of the conspiracy
C says to gf Can you take care of kids tonight?” for the conspiracy
admit, in furtherance
E secretly undercover cop.
Admit, technically co-conspirator
G post-arrest confession.
inadmissible against co-conspirators because conspiracy over then but can be admissible against him under d2A
